A judgment may not be set aside for any defect in the pleadings or the record that is aided by verdict or amendable as a matter of form.
(Orig. Code 1863, § 3509; Code 1868, § 3532; Code 1873, § 3590; Code 1882, § 3590; Civil Code 1895, § 5365; Civil Code 1910, § 5960; Code 1933, § 110-705; Ga. L. 1984, p. 22, § 9.)
Cross references.- Amendment of findings and amendment of judgment upon motion of party, § 9-11-52.
Relief from judgments generally, § 9-11-60.
Corresponding provision relating to criminal procedure, § 17-9-62.
Law reviews.- For comment on Flanigan v. Hutchins, 164 Ga. 313, 138 S.E. 793 (1927), see 1 Ga. B.J. 48 (1927).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- Many of the cases cited under O.C.G.A. § 9-12-15 were decided under procedure obtaining prior to enactment of the Civil Practice Act of 1966 (Chapter 11 of this title). See O.C.G.A. § 9-11-60 as to relief from judgments under the Civil Practice Act.
Code section carrying forward these provisions.
- Provisions of former Code 1933, § 110-705 (see now O.C.G.A. § 9-12-15) were substantially carried forward in Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60). Cook v. Bright, 150 Ga. App. 696, 258 S.E.2d 326 (1979).
Scope of section.
- Under O.C.G.A. § 9-12-15, a judgment may not be set aside for any defect that is aided by a verdict or amendable as to matter of form. Grier v. Employees Fin. Servs., 158 Ga. App. 813, 282 S.E.2d 342 (1981).
This section is applicable to motions in arrest of judgments, not to motions for new trial, and seems then to apply to formal defects only. City of Rome v. Shropshire, 112 Ga. 93, 37 S.E. 168 (1900).
Defect may be cured by verdict.
- Though a cause of action may be defectively set forth, the defect may be cured by the verdict. Pattillo v. Mangum, 179 Ga. 784, 177 S.E. 604 (1934).
Motion to set aside a judgment will lie for any defect not amendable which appears on the face of the record or pleadings, but since the verdict cures any defect which might have been corrected by amendment, even though it could be assumed that the plaintiff could have been required to amend the plaintiff's petition so as to allege specifically and in terms that the defendant was indebted to the plaintiff as payee on unconditional, unendorsed, and unpaid promise to pay, the petition did not fail to set forth a cause of action, it being the general rule that the payee of a note is presumed to continue in its ownership. Hobbs v. Citizens Bank, 32 Ga. App. 522, 124 S.E. 72 (1924). See also Strickland v. Citizens Nat'l Bank, 15 Ga. App. 464, 83 S.E. 883 (1914); Brooke v. Fouts, 37 Ga. App. 563, 140 S.E. 902 (1927).
Unless a pleading shows on the pleading's face that a cause of action does not exist, or the pleading is so defective that the pleading could not be amended at all, or the defect is of such character as renders unenforceable or meaningless a verdict and judgment based thereon, defects in the pleading are cured by the verdict on the theory that there is a conclusive presumption that the jury had before it sufficient evidence to authorize the verdict on every essential ingredient, necessary for the verdict's rendition, which would have been admissible or relevant under any proper amendment. J.R. Watkins Co. v. Herring, 51 Ga. App. 396, 180 S.E. 525 (1935).
Defect cured by judgment.
- Defect which would be amendable before verdict will be cured by the judgment in the case. Mercer v. Nowell, 179 Ga. 37, 175 S.E. 12 (1934).
Defect making legal judgment impossible.
- Petition cannot be said to be so defective that no legal judgment can be rendered thereon when an amendment would have perfected the judgment. Stowers v. Harris, 194 Ga. 636, 22 S.E.2d 405 (1942).
If the pleadings are so defective that no legal judgment can be rendered, the judgment will be arrested or set aside. Auld v. Schmelz, 199 Ga. 633, 34 S.E.2d 860 (1945).
Motion in arrest of judgment can be sustained only for defects appearing on the face of the pleadings which could not be cured by amendment and are not aided by the verdict. Pattillo v. Mangum, 179 Ga. 784, 177 S.E. 604 (1934).
Facts necessary to render judgment subject to motion in arrest of judgment.
- Petition, although defective and subject to general demurrer (now motion to dismiss), in that the petition omits to set forth all the necessary ingredients of a cause of action, will not render the judgment based thereon subject to a motion in arrest of judgment, unless the petition shows on the petition's face that a cause of action did not exist, or that the petition is so defective that the petition could not be amended at all, or that the defect in the petition is of such character as renders unenforceable or meaningless the verdict and judgment based thereon. This must be the rule, for the reason that, save for the exceptions stated, the defects in the pleadings are cured by the verdict, on the theory that there is a conclusive presumption that the jury had before it sufficient evidence to authorize the verdict on every essential ingredient, necessary for the judgment's rendition, which would have been admissible or relevant under any proper amendment. Rollins v. Personal Fin. Co., 49 Ga. App. 365, 175 S.E. 609 (1934); Burch v. Dodge County, 193 Ga. 890, 20 S.E.2d 428 (1942); Cravey v. Citizens & S. Nat'l Bank, 110 Ga. App. 284, 138 S.E.2d 321 (1964); Adams v. Morgan, 114 Ga. App. 180, 150 S.E.2d 556, cert. dismissed, 222 Ga. 280, 152 S.E.2d 692 (1966).
Motion to arrest held to be without merit.
- When nowhere in the motion for arrest was it alleged that the judgment sought to be arrested was procured by accident, mistake, or fraud or through any defect not amendable appearing on the face of the record or pleadings, or by perjury, or any other irregularity, the motion was without merit. Stefanick v. Ouellette, 97 Ga. App. 644, 104 S.E.2d 156 (1958).
When motion to arrest may be interposed.
- Motion in arrest of or to set aside a judgment may be interposed when it appears from the face of the record or the pleadings that no cause of action exists against the defendant. Smith v. Franklin Printing Co., 54 Ga. App. 385, 187 S.E. 904 (1936).
Defenses in motion to arrest judgment barred by waiver.
- When the defendant is served, and appears and pleads to the merits, and a verdict and judgment are rendered against the defendant, the defendant cannot, in a motion to arrest the judgment, urge matters of defense which were put in issue and passed upon by the court and jury. Olshine v. Bryant, 55 Ga. App. 90, 189 S.E. 572 (1936).
Test for collateral attack on judgment.
- One of the tests in determining whether a judgment is absolutely void and subject to collateral attack is whether the party attacking the judgment had been a party thereto. A motion in arrest of judgment could have been sustained for defects appearing in the face of the pleadings, which could not have been aided by amendment or cured by the verdict. Deck v. Shields, 195 Ga. 697, 25 S.E.2d 514 (1943).
Cited in Hudson v. Cohen, 34 Ga. App. 119, 128 S.E. 205 (1925); Henderson v. Ellarbee, 35 Ga. App. 5, 131 S.E. 524 (1926); Flanigan v. Hutchins, 164 Ga. 313, 138 S.E. 793 (1927); Weems v. Kidd, 37 Ga. App. 8, 138 S.E. 863 (1927); Willcox v. Beechwood Band Mill Co., 166 Ga. 367, 143 S.E. 405 (1928); Merchants' Grocery Co. v. Albany Hdwe. & Mill Supply Co., 44 Ga. App. 112, 160 S.E. 658 (1931); McBride v. Sconyers, 46 Ga. App. 235, 167 S.E. 309 (1933); Hayes v. American Bankers' Ins. Co., 46 Ga. App. 552, 167 S.E. 731 (1933); Henderson v. American Hat Mfg. Co., 57 Ga. App. 10, 194 S.E. 254 (1937); Underwood v. D.C. Heath & Co., 64 Ga. App. 180, 12 S.E.2d 464 (1940); Deck v. Shields, 195 Ga. 697, 25 S.E.2d 514 (1943); Veneer Mfg. Co. v. Hill, 72 Ga. App. 28, 32 S.E.2d 838 (1945); Barbee v. Barbee, 201 Ga. 763, 41 S.E.2d 126 (1947); McEntyre v. Burns, 81 Ga. App. 239, 58 S.E.2d 442 (1950); Wilder v. Rowell, 83 Ga. App. 585, 64 S.E.2d 96 (1951); Miller v. Turner, 209 Ga. 255, 71 S.E.2d 517 (1952); Hinkle v. Hinkle, 209 Ga. 554, 74 S.E.2d 657 (1953); Harper v. Mayes, 210 Ga. 183, 78 S.E.2d 490 (1953); Busey v. Milam, 95 Ga. App. 198, 97 S.E.2d 533 (1957); Stefanick v. Ouellette, 97 Ga. App. 644, 104 S.E.2d 156 (1958); Crawford v. Sumerau, 101 Ga. App. 32, 112 S.E.2d 682 (1960); Rielly v. Crook, 112 Ga. App. 334, 145 S.E.2d 110 (1965); Saturday v. Saturday, 113 Ga. App. 251, 147 S.E.2d 798 (1966); Daniels v. Sanders, 114 Ga. App. 495, 151 S.E.2d 820 (1966); Bragg v. Bragg, 224 Ga. 294, 161 S.E.2d 313 (1968); Alexander v. Askin Squire Corp., 144 Ga. App. 662, 242 S.E.2d 324 (1978); Simonds v. Simonds, 145 Ga. App. 227, 243 S.E.2d 545 (1978); Law Offices of Johnson & Robinson v. Fortson, 175 Ga. App. 706, 334 S.E.2d 33 (1985); Matthews v. Neal, Greene & Clark, 177 Ga. App. 26, 338 S.E.2d 496 (1985).
Specific Application
When there is no attack on the verdict in the motion in arrest of judgment, nor any enumeration of error attacking the verdict because of lack of evidence or for any other reason, no consideration of the evidence is necessary, and there being no attack on the verdict, the verdict must stand. Adams v. Morgan, 114 Ga. App. 180, 150 S.E.2d 556, cert. dismissed, 222 Ga. 820, 152 S.E.2d 693 (1966).
Distinction between an irregularity and a complete defect in the proceedings is that the former may be waived by the adverse party, but not the latter. Beall v. Blake, 13 Ga. 217, 58 Am. Dec. 513 (1853).
Irregularity in the direction of the process of a suit is amendable. Pearson v. Jones, 18 Ga. App. 448, 89 S.E. 536 (1916); Gray v. Riley, 47 Ga. App. 348, 170 S.E. 537 (1933).
When irregularities in the record can be corrected by amendment, the judgment will not be arrested or set aside. Homasote Co. v. Stanley, 104 Ga. App. 636, 122 S.E.2d 523 (1961); Norton Realty & Loan Co. v. Board of Educ., 129 Ga. App. 668, 200 S.E.2d 461 (1973).
Judgment curing defect in summons or bill of particulars.
- Irregularity in the summons or bill of particulars attached thereto, which is not excepted to by the defendant, is waived by the defendant, and cured by a judgment rendered on the merits of the case. Harris v. Bennett Bros., 72 Ga. App. 589, 34 S.E.2d 615 (1945).
Degree of discretion for setting aside judgment based on jury verdict.
- Broad discretion in judge to arrest or set aside a judgment during the term in which the judgment was rendered, for defects not amendable which appear on the face of the record or pleadings, does not apply to a judgment based on a jury verdict. Homasote Co. v. Stanley, 104 Ga. App. 636, 122 S.E.2d 523 (1961).
When motion to arrest default judgment permitted.
- When a default judgment has been rendered, after the time for opening the default has passed, the defendant may move in arrest thereof for any defect not amendable which appears on the face of the record or pleadings, but such judgment may not be arrested or set aside for any defect in the pleadings that is aided by the verdict. Whitley v. Currington, 105 Ga. App. 681, 125 S.E.2d 678 (1962).
Motion in arrest of judgment based on a deficiency in the petition on which judgment was rendered is insufficient when such motion and the record fail to show, in addition to the fact that the petition did not state a cause of action, the further fact that no cause of action existed. Whitley v. Currington, 105 Ga. App. 681, 125 S.E.2d 678 (1962).
Service defect on face of record.
- When a defect in the service of process appears on the face of the record, it is subject to a motion in arrest or a motion to set aside the judgment, and no traverse is necessary. Jennings v. Davis, 92 Ga. App. 265, 88 S.E.2d 544 (1955).
Matters not appearing on face of record.
- Any motion to set aside a verdict, based on matters not appearing on the face of the record, is a motion for a new trial, and is subject to all the rules of law governing such motions. Johnston v. Ford, 43 Ga. App. 132, 158 S.E. 527 (1931).
Motion to set aside a verdict based on matters not appearing on the face of the record is not an available remedy to avoid a verdict, unless the motion is of such form and content as to be in substance a motion for a new trial, and complies with the rules governing such a motion. Wrenn v. Allen, 180 Ga. 613, 180 S.E. 104 (1935).
Erroneous rulings on pleadings are not proper grounds for motions in arrest or to set aside judgments, nor are rulings on pleadings proper grounds of a motion for new trial. Hambrick v. Nova, 112 Ga. App. 258, 144 S.E.2d 922 (1965).
Waiver prevents attack on jurisdiction in motion to arrest judgment.
- When a defendant appears and pleads to the merits of a case, without pleading to the jurisdiction of the court, and without excepting thereto, the defendant thereby admits the jurisdiction of the court; and, after verdict and judgment, the question of jurisdiction cannot be raised in a motion to arrest the judgment. Olshine v. Bryant, 55 Ga. App. 90, 189 S.E. 572 (1936).
Pendency of undisposed motion to dismiss.
- When a petition to vacate and set aside the judgment could have been amended as to meet grounds of demurrer (now motion to dismiss) interposed by the defendant, the pendency of the demurrers undisposed of did not constitute such a defect appearing upon the face of the record as would have authorized arresting or setting aside the judgment. Oliver v. Fireman's Ins. Co., 42 Ga. App. 99, 155 S.E. 227 (1930), rev'd on other grounds, 46 Ga. App. 507, 167 S.E. 909 (1932).
Procedure required for setting aside.
- Judgment based on the jury's verdict cannot be set aside by a motion to set aside as long as the verdict upon which the judgment is based stands and has not been set aside by proper procedure. Adams v. Morgan, 114 Ga. App. 180, 150 S.E.2d 556, cert. dismissed, 222 Ga. 820, 152 S.E.2d 693 (1966).
Negligence in failing to examine original pleadings.
- Negligence of a client or the client's attorney in failing to examine the original pleadings in a case is not ground for setting aside the judgment. Rahal v. Titus, 110 Ga. App. 122, 138 S.E.2d 68 (1964).
Defects in matters of form can be amended. Homasote Co. v. Stanley, 104 Ga. App. 636, 122 S.E.2d 523 (1961).
Irregularity in judgment as to the judgment's amount may be corrected by amendment. Homasote Co. v. Stanley, 104 Ga. App. 636, 122 S.E.2d 523 (1961).
Sums recoverable determinable by mathematical calculation.
- When substantial issues between parties in an attachment proceeding had been determined and the sums recoverable from funds in the hands of the garnishees to make up the amount of the verdict were easily ascertainable by subtraction, judgment for the plaintiff could be corrected by amendment, and it was not error to sustain the general demurrer (now motion to dismiss) to the defendant's motion in arrest of judgment. Homasote Co. v. Stanley, 104 Ga. App. 636, 122 S.E.2d 523 (1961).
Judgment for larger amount than sued for.
- Judgment for a larger amount than sued for is a mere irregularity which can be amended by a write off. Almon v. Citizens & S. Nat'l Bank, 108 Ga. App. 799, 134 S.E.2d 435 (1963).
Return of service is an amendable defect. Love v. National Liberty Ins. Co., 157 Ga. 259, 121 S.E. 648 (1924).
Judgment not set aside when defects amendable.
- After judgment in attachment, the judgment will not be set aside on account of amendable defects in the bond and attachment. Steers & Co. v. Morgan & Armstrong, 66 Ga. 552 (1881).
Final judgment for divorce will not be set aside on the ground that petition does not set forth a cause of action since the deficiency in the petition is amendable and cured by the verdict. Guthas v. Guthas, 207 Ga. 177, 60 S.E.2d 370 (1950).
Order of forfeiture was not set aside pursuant to O.C.G.A. § 9-12-15 as the failure to verify a petition was an amendable defect. McDowell v. State of Ga., 290 Ga. App. 538, 660 S.E.2d 24 (2008).
When defect in attachment amendable.
- If an affidavit upon which the attachment was issued is to be construed as swearing to the grounds of attachment equivocally, as contended in stating the grounds of the motion to set aside, the defect was amendable. McDonald v. W.W. Kimball Co., 144 Ga. 105, 86 S.E. 234 (1915).
Failure in a trover suit to allege a demand was an amendable defect. Harris v. Bennett Bros., 72 Ga. App. 589, 34 S.E.2d 615 (1945).
Absence of prayers asking court to decree title to property to plaintiff.
- Petition for divorce and alimony, containing allegations that title and ownership of certain real and personal property were in plaintiff's name shows on its face a purpose to have title to such property decreed in the plaintiff, and the absence of specific prayers that title be decreed in the plaintiff's name is an amendable defect, and the want of such prayers is cured by judgment. Armstrong v. Armstrong, 206 Ga. 540, 57 S.E.2d 668 (1950).
Divorce petition failing to request alimony.
- Divorce petition which gives no indication by its pleadings that the wife is seeking an alimony judgment cannot be amended by the introduction of evidence when the husband has filed no pleadings and does not litigate the issues at the trial. Lambert v. Gilmer, 228 Ga. 774, 187 S.E.2d 855 (1972).
Judgment by a judge without a jury has the effect of a verdict, insofar as amendable defects in the pleadings are concerned. Davis v. Bray, 119 Ga. 220, 46 S.E. 90 (1903); Harvard v. Walton, 243 Ga. 860, 257 S.E.2d 280 (1979).
Proceeding to set aside judgment based on defective return.
- In a direct proceeding to set aside a judgment based on a defective return, the movant cannot rely on the incompleteness of the return but must affirmatively show that the service actually made was not such as is required by the statute. Jones v. Bibb Brick Co., 120 Ga. 321, 48 S.E. 25 (1904).
Failure to attach a bill of particulars to a declaration can be cured by amendment, and is not a good ground to set aside a judgment thereon. Wilson v. Strickler & Co., 66 Ga. 575 (1881); Harris v. Bennett Bros., 72 Ga. App. 589, 34 S.E.2d 615 (1945); Rich's, Inc. v. Coleman, 116 Ga. App. 419, 157 S.E.2d 814 (1967).
Petition of administrator to sell lands.
- Under former Civil Code 1910, § 4026 (see now O.C.G.A. § 53-8-23), the petition of an administrator for an order to sell the land of the administrator's intestate should set forth that such sale was necessary for the payment of the debts of the estate or for the purpose of distribution, but the omission of such an allegation was an amendable defect within the meaning of former Civil Code 1910, § 5960 (see now O.C.G.A. § 9-12-15), which was cured by a judgment granting leave to sell. Laramore v. Dudley, 145 Ga. 102, 88 S.E. 682 (1916).
Petition to recover land and mesne profits.
- Omission of specific prayers has been held to be an amendable defect. For example, failure to pray for damages in a petition to recover land and mesne profits is amendable. Fitzpatrick v. Paulding, 131 Ga. 693, 63 S.E. 213 (1908).
Omission of a prayer for process from a petition is an amendable defect. Guthrie v. Spence, 55 Ga. App. 669, 191 S.E. 188 (1937).
Omission of prayer for finding of true line in processioning case.
- In a processioning case, omission of prayer that alleged true line be found and decreed was an amendable defect. McCollum v. Thomason, 32 Ga. App. 160, 122 S.E. 800 (1924).
Issue as to entitlement to money recovery.
- When pleadings join issue as to whether the prevailing party is entitled to a recovery in money, the omission of a prayer for relief of that nature may be cured by amendment, and hence is not a ground of a motion in arrest of judgment. Wright v. Florida-Georgia Tractor Co., 218 Ga. 824, 130 S.E.2d 736 (1963); Betts v. First Ga. Bank, 177 Ga. App. 359, 339 S.E.2d 616 (1985).
Failure to include data in petition.
- Failure to include in the petition or exhibit the dates or other data upon which interest might be computed did not render the judgment unauthorized by the pleading. Holmes v. Reville, 27 Ga. App. 552, 109 S.E. 417 (1921).
While a declaration did not allege any express agreement, since the declaration did allege facts from which an agreement could be reasonably implied, the defect in the declaration was curable by amendment, and it was too late, after the verdict, to take advantage of the same by motion in arrest of judgment, the declaration in other respects setting forth a cause of action. Moss & Co. v. Stokeley, 95 Ga. 675, 22 S.E. 692 (1895).
Failure to include names of beneficiaries in homestead.
- Failure to set out the names of all the beneficiaries in a suit to subject homestead, and the informal way in which the property of the homestead estate was described, are defects which would be amendable before, and which would be cured by, a judgment in the case. Wegman Piano Co. v. Irvine, 107 Ga. 65, 32 S.E. 898, 73 Am. St. R. 109 (1899).
Failure to allege defendant's residence.
- Omission to allege, in the declaration, that the defendant resides in the county where the suit is brought, is amendable, may be waived by pleading to the merits, and is not good in arrest of judgment. Raney v. McRae, 14 Ga. 589, 60 Am. Dec. 660 (1854).
Misjoinder of causes of action could be eliminated before the verdict by appropriate amendment under operation of the rule that a defect in a petition which is amendable is cured by the verdict, such a defect unobjected to at the proper time before the verdict, would be cured by the verdict. Georgia R.R. & Banking Co. v. Tice, 124 Ga. 459, 52 S.E. 916, 4 Ann. Cas. 200 (1905); Morgan v. Morgan, 157 Ga. 907, 123 S.E. 13 (1924).
Objection to a petition on the ground of misjoinder of parties affords no ground to arrest judgment. Love v. National Liberty Ins. Co., 157 Ga. 259, 121 S.E. 648 (1924).
Motion to set aside applicable when motion to dismiss would have been.
- Motion to set aside a default judgment, on account of insufficiency of the petition, operates as a general demurrer (now motion to dismiss) to the petition; and any defect which could have been reached by general demurrer can, after a default judgment, be taken advantage of by a motion to arrest or set aside the judgment. Sheffield v. Causey, 12 Ga. App. 588, 77 S.E. 1077 (1913).
RESEARCH REFERENCES
Am. Jur. 2d.
- 46 Am. Jur. 2d, Judgments, § 130 et seq.
C.J.S.- 49 C.J.S., Judgments, §§ 54, 410.
ALR.
- Failure of decree or order of distribution of decedent's estate to describe specifically the property or property interests involved, or misdescription thereof, 120 A.L.R. 630.
Correction of mistake in judgment entered under warrant of attorney to confess judgment, 144 A.L.R. 830.
Power of court to award alimony or property settlement in divorce suit as affected by failure of pleading or notice to make a claim therefor, 152 A.L.R. 445.
Necessity of notice of application or intention to correct error in judgment entry, 14 A.L.R.2d 224.